Please enjoy the latest issue of Short Circuit, a weekly feature written by a group at the Institute for Justice.
New Supreme Court victory! Friends, it is very bad and wrong for government officials to arrest people in retaliation for their comments, and yesterday the Supreme Court issued a very important ruling on what evidence can be used to prove claims of retaliatory arrests. 5th Circuit holds that our client Sylvia Gonzalez was incarcerated for a “crime,” but she passed after she supported a petition to oust Castle Hill, Texas, city manager It is not enough that irregular and inappropriate procedures never resulted in an arrest. In reversing this ruling, the Supreme Court ensured that those who were punished, wrongfully accused, and jailed for speaking out against authorities would have their time in court. Click here to learn more.
New on the Bound By Oath Podcast: In Kelo v. New London(2005), the Supreme Court allowed officials to seize and raze entire neighborhoods of well-maintained homes and businesses in the hope that others would build nicer ones. In this episode, we ask: So what, if anything, is left behind when the Fifth Amendment prohibits the use of eminent domain to take property from person A and give it to person B?
- In 2017, at the request of the Chinese government, US casino magnate Steve Wynn lobbied Donald Trump to extradite a Chinese businessman. Trump reportedly objected after learning the businessman was a Mar-a-Lago member, and Wynn told the Chinese he could no longer assist. The next year, the federal government told Wynn he needed to register as a foreign agent. Wynn refused, and the FBI filed suit in 2022 to force Wynn to register. DC Circuit: Registered Personnel Only yes Foreign Agent. Wynn used to be Foreign Agent. The case was dismissed.
- The Digital Performance Rights in Phonograms Act of 1995 gives recording artists a 45% share of certain royalties generated from recordings. When the former lead singer of the popular Puerto Rican band El Gran Combo demanded his share, the record company protested that he was not a recording artist—El Gran Combo (owned by the record company) was a recording artist. First Circuit: “If you think Paul, John, George and Ringo are ‘recording artists'[s] . . . Featured on The White Album – even though the iconic record’s cover doesn’t mention The Beatles by name – then you won’t be surprised by the analysis that follows.
- In a 2010 False Claims Act lawsuit, litigants temporarily sealed a pile of summary judgment documents, settled the case before the trial court ruled on the summary judgment motion, and never got around to asking. This is a procedural rat. The archived files are permanently archived. Then, in 2023, a documentary filmmaker asked to see the still-sealed records. District Court: I never ruled on the summary judgment motion, so the public has no right to obtain these materials. 4th Circuit: No way. “The public has an interest in ensuring fundamental fairness and deterring official misconduct, not just in the outcome of certain proceedings, but in the proceedings themselves.” The remand was remanded so that the district court could consider whether there was a compelling government interest in keeping the documents sealed.
- The Arechabala family in Cuba began producing rum in the 1930s and exported it to the United States under the Havana Club trademark. After the Cuban revolution, Castro’s government stole the family’s assets, including the Havana Club trademark. The family’s trademark expired (trademarks must be renewed every ten years with paperwork and fees), and a Cuban government-owned company registered the trademark for itself. The Cuban company missed out on contract renewal in 2006 due to a trade embargo, but the federal government still allowed it to renew. Bacardi, which bought the family’s interest in the trademark and fought for 20 years to reclaim it, sued the federal government. District Court: No judicial review of agency decision to renew trademark. 4th Circuit: Oh, yes.
- In 2020, USA Today published an in-depth look at sexual misconduct allegations within LSU’s athletic department, including that the school covered up rape and date violence allegations against star football players. Seven years ago, the school hired a law firm to conduct a Title IX investigation into sexual harassment allegations against its football coach. The report was confidential, the allegations were resolved privately and the coach was “cleared of any wrongdoing” while being urged not to have one-on-one contact with students. After the USA TODAY article was published, an athletic director sued the school’s Board of Supervisors (bringing Title VII and Title IX claims) and two partners of the firm that conducted the investigation (alleging that the partners acted as RICO to suppress the complaint part of the plan). 5th Circuit (2023): No RICO. While the appeal is pending, the investigation of the Chapter 7 and Chapter 9 claims continues apace, with the district court compelling the partners to provide testimony and disclose documents from the 2013 report under the criminal fraud exception to the attorney-client privilege. 5th Circuit (2024): No crime occurred, therefore no criminal fraud exception.
- Like sand passing through an hourglass, so does the appeal of the Fifth Circuit. Last time we had an ongoing challenge to the new CFPB credit card rules, a 5th Circuit panel authorized the district court because it lacked jurisdiction to transfer the case to the District of Columbia. It also recommended that the district court should temporarily stay its transfer order to allow time for appeals. District Court (on remand): I am moving this puppy again and I am not going to continue to do nothing. Plaintiff (later that night): Well, please stay. 5th Circuit (after appeal again): Do your job! The transfer has not been completed because it has not been registered with DC
- Texas inmate: Prison guards sodomized me with pencils, causing my colon to rupture. Guard: No! 5th Circuit (unpublished): He did exhaust administrative remedies before filing suit. The case was not dismissed.
- Voting rights activists challenged Texas election laws, sued the Texas attorney general and others. Additionally, the Texas Court of Criminal Appeals (2021) stated that giving the AG primary enforcement authority violates the Texas Constitution. The DA has these. Activists: Oh, okay, we’ll amend our complaint and sue the Harris County District Attorney. Harris County District Attorney: “Sovereign Immunity!” 5th Circuit (2024): That’s right. Although DA able Enforce these voting rules that she doesn’t enforce. must So, although the state court suggested that you really shouldn’t sue anyone else, she was not the proper party to sue. “It’s not ridiculous.”
- Following the Supreme Court’s 2020 ruling Bostock v. Clayton County In light of the fact that Title VII prohibits discrimination based on sexual orientation or gender identity, the Department of Education issued a new interpretation of Title IX in 2021, arguing that Title IX prohibits sex discrimination in education programs that receive federal funding and also prohibits discrimination on the basis of sexual orientation or gender identity. Discrimination based on sexual orientation or gender identity. Twenty states sued and obtained preliminary injunctions. Sixth Circuit: Affirmed. New interpretations should be informed and commented upon. Objection: The new interpretation has no legal effect and therefore has no legal basis.
- Since at least 2007, Oklahoma has allowed transgender people to obtain Oklahoma birth certificates with an amended gender designation. In 2021, the governor issued an executive order directing the Department of Health to stop changing gender designations. Three transgender Oklahomans sued. 10th Circuit: It was sex discrimination and therefore likely to be subject to greater scrutiny, but it failed even rational scrutiny. Objection: It’s not clear that all discrimination against trans people is sexism, but that doesn’t matter because, yes, it’s not examined on a rational basis.
- In it, the Eleventh Circuit explained that you can get Fourth Amendment protection from a warrantless search of your home or you can live with your boyfriend on probation, but you definitely can’t do both Of.
- A Honduran citizen illegally crossing the Rio Grande was caught a day later by Border Patrol. She (or, more accurately, her Miami boyfriend with whom she planned to live) provided agents with the address where she planned to live. But the address contains a small but serious error: a missing “SW”. So when immigration officials finally mailed a notice setting the date and time for the woman’s deportation hearing, she didn’t receive it. oops! She failed to attend the hearing and was deported in absentia. Woman (sixteen years later): Since I never received the notification, the deportation proceedings should be restarted. Eleventh Circuit: None. It is your responsibility to provide the correct address.
- In en banc news, the 6th Circuit will reconsider its decision asking the Ohio Attorney General to approve a proposed state constitutional amendment to eliminate qualified immunity (and other immunities) so that its sponsors can begin collecting sign. (The attorney general has refused certification six times, finding various reasons why the amendment summary was not “fair and truthful.”)
New case! Last year, Arkansas lawmakers created the Education Freedom Account program, which provides up to $6,800 per student to pay for certain education expenses, including private school tuition, tutoring and therapy. While eventually all students will be eligible for the program, currently it is only available to students with disabilities, current or former foster children, children of military personnel and first responders, among others. Sadly, however, the scheme has become the target of litigation and IJ is intervening on behalf of the family to defend it. “Before I received an Educational Freedom Account, my son was bullied and struggled academically, but now I have the resources to get him into a school where he thrives,” Erika Lara explain. “Canceling this program would put my son’s academic and social advancement at risk.” Learn more here.
